Development of a liability regime for deep seabed mining should be responsive to the practical realities of organizational practices and structures to ensure injured parties have legal recourse to seek compensation for environmental damages. Under the United Nations Law of the Sea Convention (LOSC), contractors engaged in deep seabed mining activities and the states that sponsor those contractors bear primary responsibility for environmental harm arising from their respective roles in mining and oversight. A critical question in assessing which states should be involved in the sponsorship, and which entities could be liable for environmental harm from deep seabed mining activities, is the legal interpretation of the term “effective control.” This paper explores how the concept of effective control, as used in the LOSC, holds the potential to mean regulatory or economic control.
The Liability Issues for Deep Seabed Mining project was developed by the Centre for International Governance Innovation (CIGI), the Commonwealth Secretariat and the Secretariat of the International Seabed Authority (ISA) to assist in clarifying legal issues of responsibility and liability underpinning the development of exploitation regulations for the deep seabed. CIGI, in collaboration with the ISA Secretariat and the Commonwealth Secretariat, in 2017, invited leading legal experts to form the Legal Working Group on Liability for Environmental Harm from Activities in the Area (LWG) to discuss liability related to environmental damage, with the goal of providing the Legal and Technical Commission, as well as members of the ISA with an in-depth examination of potential legal issues and avenues.